The court’s earlier encounter with the law left the justices bitterly divided, with Chief Justice John G. Roberts Jr. joining the court’s three more liberal members in dissent.
The majority opinion, issued just before midnight on Sept. 1, was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.
Each of the dissenting justices issued an opinion in that earlier ruling.
“The court’s order is stunning,” Justice Sonia Sotomayor wrote, for instance. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”
“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Understand the Supreme Court’s Momentous Term
Card 1 of 5Mississippi abortion law. The court heard arguments in a challenge to a Mississippi law that bars most abortions after 15 weeks. The case could lead to the end of Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
Texas abortion law. After the court let Texas effectively outlaw most abortions in a 5-4 decision, the justices heard arguments that could allow it to reverse course. The case puts Justice Brett Kavanaugh in the spotlight as the most likely member to switch sides.
New York gun law. The justices will consider the constitutionality of a longstanding New York law that imposes strict limits on carrying guns in public. The court has not issued a major Second Amendment ruling in more than a decade.
A test for Chief Justice Roberts. The highly charged docket will test the leadership of Chief Justice John G. Roberts Jr., who lost his position at the court’s ideological center with the arrival last fall of Justice Amy Coney Barrett.
A drop in public support. Chief Justice Roberts now leads a court increasingly associated with partisanship. Recent polls show the court is suffering a distinct drop in public support following a spate of unusual late-night summer rulings in politically charged cases.
The case returned to the Supreme Court on two separate tracks. After the court rejected the providers’ request for emergency relief, the Justice Department filed its own challenge to the law, one that it said was not subject to the procedural barriers the providers had faced. The case soon reached the Supreme Court on an emergency application.
The abortion providers also returned to the court, asking the justices to use an unusual procedure — “certiorari before judgment” — to leapfrog the appeals court and decide whether they were entitled to sue.
The Supreme Court agreed to decide both cases on Oct. 22, putting them on an extraordinarily fast track. It heard arguments just 10 days later, on Nov. 1, focusing on the question of whether the providers and the government were entitled to sue in light of the law’s unusual structure.